Category: Detention

Here’s a perfect example of a Notice of Proposed Rulemaking and request for public comment as required under The Administrative Procedures Act. This one has a 2 month comment period. Beyond the fact that is a legal requirement for the agency to publish this solicitation for public comment, is it important to us?

It’s hugely important! Firstly, it makes for a permanent public record of the submitted comments, which the agency is required to consider and address in its final rule, and secondly, the proper issuance of comment gives the commenter legal standing to challenge the final rule with an action for injunctive relief against its implementation. Without this comment, it is likely that any attempt at such action would be summarily dismissed for a lack of standing by the petitioner.

As one will see, submitting a proper comment is a significant investment of time, not to mention the necessary effort and insight to “decode” the actual meanings of the proposed rules, and this is one of the ways we as “The People” are simply overwhelmed by this occupying monster we call government.

I’ve highlighted just some of the areas of interest and potential targets of comment. Some are more important than others, but they’re all important. I’m afraid you’ll have to search and read the complete areas highlighted for a complete understanding of the section in question. The entire posting is found at the hyperlink below. (‘Ctrl F’ is your friend)

“Apprehension”

“HHS/CDC requests public comment concerning the expected apprehension period (no longer than 72 hours), and whether there are any public concerns with the absence of a specific maximum apprehension period in the regulation.”

“Electronic or Internet-Based Monitoring”

“HHS/CDC specifically solicits comment regarding whether this proposed definition is sufficiently broad to apply to any new or existing technologies that would allow for the public health supervision and monitoring of an individual under a conditional release order. HHS/CDC also solicits comment regarding whether the proposed definition raises any privacy implications for an individual who is reasonably believed to be infected with a quarantinable communicable disease and who is subject to a conditional release order.”

“Indigent”

“CDC specifically requests public comment on whether the use of this standard definition is an appropriate threshold to determine whether an individual cannot afford representation and therefore should be appointed a medical representative at the government’s expense.”

“Non-Invasive”

“HHS/CDC specifically requests comment concerning this definition including whether the definition aligns with common perceptions of what constitutes non-invasive procedures that may be conducted outside of a traditional clinical setting.”

“Public Health Emergency”

“HHS/CDC specifically requests public comment on this definition and its utility in identifying communicable diseases that ‘would be likely to cause a public health emergency if transmitted to other individuals’ under 42 U.S.C. 264(d)(2)(B).”

“Reasonably Believed To Be Infected, as Applied to Individuals”

“HHS/CDC specifically solicits public comment regarding this definition, in particular, whether the definition aligns with established public health practice regarding the handling of individuals exposed to or infected with communicable diseases.”

“2. § 70.5 Requirements Relating to Travelers Under a Federal Order of Isolation, Quarantine, or Conditional Release”

(IMPORTANT) “HHS/CDC recognizes that the right to engage in travel within the United States is a privilege of national citizenship protected by the Privileges and Immunities Clause of the U.S. Constitution, as well as an aspect of liberty protected by the Due Process Clauses of the Fifth and Fourteenth Amendments. See Jones v. Helms, 452 U.S. 412, 418 (1981). However, this right is not unqualified and travel restrictions based on the threat posed by communicable diseases are valid. See Zemel v. Rusk, 381 U.S. 1, 15-16 (1965) (“The right to travel within the United States is of course also constitutionally protected . . . [b]ut that freedom does not mean that areas ravaged by flood, fire or pestilence cannot be quarantined when it can be demonstrated that unlimited travel to the area would directly and materially interfere with the safety and welfare of the area or the Nation as a whole.”). Furthermore, HHS/CDC will afford individuals subject to these travel restrictions with adequate due process through the previously mentioned written appeals process.”(IMPORTANT)

“CDC specifically requests public comment on this provision. In particular, HHS/CDC requests comment on whether stakeholders have concerns regarding the requirement imposed on conveyance operators to not “knowingly” transport individuals under a Federal order and the feasibility of this requirement. HHS/CDC also requests public comment on the application of this provision to individuals under state/local order as well as individuals traveling entirely within a state.”

“HHS/CDC specifically requests public comment on this proposed provision and whether the public has any concerns regarding the mandatory health screening of passengers using non-invasive means as defined in this proposed rule.”

“HHS/CDC specifically requests public comment on this proposed provision to collect additional personal information from screened individuals for the purposes of contact tracing.”

“7. § 70.13 Payment for Care and Treatment”

(IMPORTANT) “Payment for care and treatment under this section is in the CDC’s sole discretion, subject to the availability of appropriations, and after all third-party payments have been exhausted.” (IMPORTANT- Define “third-party payments??”)

“HHS/CDC specifically requests public comment on this proposed provision and whether there are any concerns regarding the proposal that all third party payments be exhausted prior to the Federal reimbursement of medical care or treatment for individuals placed under a Federal order for quarantine, isolation, or conditional surveillance.”

“8. § 70.14 Requirements Relating to Issuance of a Federal Order for Quarantine, Isolation, or Conditional Release”

” HHS/CDC specifically requests public comment on this proposed provision to issue Federal orders to entire groups rather than individuals.”

” HHS/CDC specifically requests public comment on this proposed provision and whether this provision sufficiently informs the public all of the important details concerning circumstances during which HHS/CDC would issue to groups or individuals Federal orders for quarantine, isolation, and conditional release and the duration and conditions of such orders.”

“9. § 70.15 Mandatory Reassessment of a Federal Order for Quarantine, Isolation, or Conditional Release”

“HHS/CDC specifically requests public comment on this provision—in particular, whether 72 hours is the necessary amount of time to conduct a reassessment after a Federal order is first issued, or if the reassessment should take place earlier or later.”

“10. § 70.16 Medical Review of a Federal Order for Quarantine, Isolation, or Conditional Release”

“HHS/CDC specifically requests public comment on this proposed provision—in particular, whether or not the public sees a role for the Federal government to ensure that basic living conditions, amenities, and standards are satisfactory when placing individuals under Federal orders.”

“HHS/CDC specifically requests public comment on this provision—in particular, whether the public believes that there may be non-indigent individuals, as defined in this NPRM, who may have difficulty affording a representative”

13. § 70.19 Penalties”

“This section clarifies that of the statutory penalties imposed for violation of quarantine regulations (i.e., 42 U.S.C. 271 and 18 U.S.C. 3571), this rule will codify the higher penalty as established in 18 U.S.C. 3571.”

“HHS/CDC specifically requests public comment on this proposed provision—in particular, whether the penalties as proposed in this rule are clearly defined and the circumstances under which such penalties may be imposed.”

. . . and there’s much, much more. Good luck!

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“14. § 71.40 Agreements”

(EXTREMELY IMPORTANT!!) “CDC may enter into an agreement with an individual, upon such terms as the CDC considers to be reasonably necessary, indicating that the individual consents to any of the public health measures authorized under this part, including quarantine, isolation, conditional release, medical examination, hospitalization, vaccination, and treatment; provided that the individual’s consent shall not be considered as a prerequisite to any exercise of any authority under this part.” (emphasis added)